Opinion
January 8, 1900.
March 2, 1900.
Present: HOLMES, C.J., MORTON, LATHROP, BARKER, HAMMOND, JJ.
If a crossing as it now exists is not in fact a grade crossing, the circumstances that it was once such a crossing and that the grades of the street and the railroad have been separated under proceedings in accordance with Pub. Sts. c. 112, §§ 129 et seq., begun before the passage of the present act to promote the abolition of grade crossings, St. 1890, c. 428, do not make the crossing one with which the Superior Court can deal upon a petition under the last named statute.
PETITION to the Superior Court under the statute relating to abolition of crossings at grade by railroads and other roads. Trial in the Superior Court, before Stevens, J., who ruled that St. 1890, c. 428, does not confer jurisdiction on the Superior Court to further alter a crossing like that referred to in the petition which had been altered by proceedings under Pub. Sts. c. 112, §§ 129 et seq., before the St. of 1890 was enacted, dismissed the petition and reported the case for the determination of this court.
W.G. Bassett, for the petitioner.
J.C. Hammond H.P. Field, for the respondents.
The petition was rightly dismissed. The crossing as it now exists is not in fact a grade crossing, and the circumstances that it was once such a crossing, and that the grades of the street and the railroad have been separated under proceedings in accordance with the provisions of Pub. Sts. c. 112, §§ 129 et seq., begun before the passage of the present act to promote the abolition of grade crossings, St. 1890, c. 428, do not make the crossing one with which the Superior Court can deal upon a petition under St. 1890, c. 428, § 1.
The intention of the Legislature to confine proceedings under that section to cases in which the abolition of an actual grade crossing is sought is shown by the language of the section, which relates to such crossings only, and by the fact that the old provisions for the alteration of crossings are left unrepealed. See Pub. Sts. c. 112., §§ 129 et seq.
If, owing to the nature and amount of travel upon the street and the nature of the crossing as it now exists, public convenience and necessity require an alteration of the crossing, the language of Pub. Sts. c. 112, § 129, meets the case, and gives the county commissioners power, under a proper petition, to adjudicate upon the necessity, and to decide the manner and limits within which the alteration shall be made. See Boston Albany Railroad v. County Commissioners, 164 Mass. 551; New Haven Northampton Co. v. County Commissioners, 173 Mass. 12.
Decree dismissing petition with costs affirmed.